Brief Summary

Maintenance — Customary law adoption — Legal duty to maintain adopted child — Respondent and applicant adopted a minor child under Xhosa customary law — After separation, applicant sought maintenance from respondent for the child — Respondent contended he had no legal obligation to maintain the child as he had not adopted her under statutory law — Court held that customary law adoption is valid and imposes a legal duty of maintenance on the adoptive parent, irrespective of formal adoption under the Child Care Act or Children’s Act, thereby affirming the respondent's obligation to provide maintenance for the child.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter came before the South Gauteng High Court, Johannesburg, as a special review arising from proceedings in the Westonaria Magistrates’ Court. The referral was made by Magistrate Fatima Khan in terms of section 304(4) of the Criminal Procedure Act 51 of 1977.

The parties were Nobongile Sweetness Ria Maneli (the applicant) and Zandisile Garnet Maneli (the respondent). They were formerly married to each other and, during the marriage, jointly took in and raised a minor child who had been adopted by them in accordance with Xhosa customary law.

The procedural history was that, after the parties’ separation, the applicant instituted a maintenance complaint against the respondent in terms of section 10 of the Maintenance Act 99 of 1998. Following an enquiry, the magistrate found that the respondent bore a legal duty to maintain the minor child. The matter was then placed before the High Court on special review to determine whether the magistrate’s conclusion was correct, and in particular whether the court was entitled to develop customary law (and/or the common law) with reference to sections 39(2) and (3) and 173 of the Constitution so as to recognise and enforce maintenance obligations flowing from a customary-law adoption.

The general subject-matter of the dispute concerned whether a person who is not the child’s biological parent, and who has not adopted the child through the statutory mechanisms of the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005, can nonetheless be held liable to pay maintenance where the child was adopted and raised under Xhosa customary law and a parent–child relationship existed in fact and in customary-law terms.

2. Material Facts

It was common cause that the parties concluded a customary-law marriage and later married each other in community of property on 22 October 1992. No children were born of the marriage.

In January 1997, at the respondent’s instance, the parties jointly decided to adopt an eight-month-old female child whose biological parents were deceased. The adoption was carried out in terms of Xhosa customary law, including the performance of the relevant traditional rites and rituals. The child was taken into the parties’ home at the age of eight months and was approximately twelve years old at the time of the proceedings. The court treated it as material that a fully developed parent/child relationship existed between the minor child and both parties.

After the customary-law adoption, the parties approached the Department of Home Affairs in Westonaria and registered the minor child as their own child, and the child was given the name J M. The respondent maintained the child and paid educational and medical needs during the period of cohabitation, and the child became emotionally and psychologically attached to him.

In March 2004, after the breakdown of the marital relationship and the parties’ separation, the applicant lodged a maintenance complaint against the respondent. The magistrate held an enquiry and concluded that the respondent had a legal duty to maintain the minor child notwithstanding that the adoption had not been effected through the Children’s Court process contemplated in the statutory adoption framework.

The judgment, as presented, did not treat the material facts as substantially disputed; rather, the dispute was framed primarily as a question about the legal consequences of the customary-law adoption for purposes of enforceable maintenance obligations under the Maintenance Act and the Constitution.

3. Legal Issues

The central legal question was whether the respondent, who had not “lawfully adopted” the minor child through the mechanisms of the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005, was nevertheless legally obliged to pay maintenance for the child as contemplated by section 10 of the Maintenance Act 99 of 1998, given that the parties had adopted the child in accordance with Xhosa customary law.

A related question, expressly raised by the referral, was whether the magistrate was entitled to develop customary law (and/or the common law) under sections 39(2) and (3) and 173 of the Constitution of the Republic of South Africa, 1996 so as to recognise that a customary-law adoption could found a legally enforceable duty of support.

The dispute was therefore predominantly one of law and the application of law to largely common-cause facts. It also involved an evaluative constitutional component, in that the judgment placed weight on the best interests of the child and the constitutional status of customary law, which required value-based reasoning consistent with the Bill of Rights.

4. Court’s Reasoning

The court situated the enquiry within multiple legal sources impacting on the issue, including the common law, the Constitution, the Maintenance Act 99 of 1998, the Child Care Act 74 of 1983, and the Children’s Act 38 of 2005. The respondent’s counsel had argued that, because the respondent was not the biological parent and had not adopted the child through the statutory process (nor had the child been placed in foster care under the Child Care Act), the court could not issue a maintenance order against him. Reliance was placed on provisions of the Maintenance Act and the Child Care Act as supporting the contention that only biological or statutorily adoptive parents bore enforceable duties of support.

Against this, the court emphasised the constitutional framework. It relied on section 28(2) of the Constitution (the child’s best interests are of paramount importance in every matter concerning the child), section 211(3) of the Constitution (courts must apply customary law when applicable, subject to the Constitution and relevant legislation), and section 39(2) of the Constitution (courts must promote the spirit, purport and objects of the Bill of Rights when interpreting legislation and developing the common law or customary law). The court further referred to section 30 (cultural participation, subject to the Bill of Rights) and discussed the interpretive obligations found in section 39(1).

A central strand of reasoning was that the Constitution does not exclude customary-law institutions such as Xhosa customary adoption. The court described customary-law adoption as a widely practised institution, and explained its social function as publicly signifying that adoptive parents have accepted parental responsibility, after which the child is regarded by the community as the adoptive parents’ child. On this basis, the court treated the customary adoption and the established parent–child relationship as legally significant for the question of maintenance.

The court accepted that, under the common law, a judicial act is required to effect adoption, and it acknowledged that statutory provisions such as section 18(1)(a) of the Child Care Act 74 of 1983 and sections 23 and 25 of the Children’s Act 38 of 2005 contemplate adoption or guardianship being effected by an order of the Children’s Court. However, the court reasoned that recognition of customary-law adoption for maintenance purposes was not necessarily displaced by those statutes, and it approached the statutory materials in a purposive manner. In particular, it stated that the words “for the adoption of children” in the preamble to the Child Care Act should be interpreted purposively so as not to exclude adoption by customary law, on the basis that customary-law adoption was not contrary to that law of general application.

In developing its approach to customary law within the constitutional order, the court relied on Constitutional Court authority emphasising that customary law must be recognised as an integral part of South African law and applied when applicable, subject to constitutional control. The court quoted from Alexkor Ltd and Another v The Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC) to the effect that customary law is not to be seen through a “common law lens”, but as part of the amalgam of South African law under the Constitution. It also relied on Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) and Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC) for the propositions that courts must respect customary law as an independent source of norms and are required not only to apply customary law but also to develop it in harmony with constitutional values.

The court also drew support from earlier decisions where customary adoption had legal consequences in relation to support. It referred to Kewana v Santam Insurance Co. Ltd 1993 (4) SA 771 (TkA), where a child adopted according to customary law was held entitled to compensation for loss of support after the negligent killing of the adoptive parent, and to Metiso v Padongelukfonds 2001 (3) SA 1142 (T), where the court recognised an enforceable duty to maintain arising from a promise made in the context of a (possibly incomplete) customary adoption and treated such recognition as reconcilable with boni mores and as a logical development of the common law. The judgment used these authorities to support the legitimacy of recognising support obligations connected to customary adoption, particularly where doing so aligned with children’s interests.

The court treated the best interests of the child as a decisive normative guide, referring both to section 28(2) of the Constitution and to provisions of the Children’s Act 38 of 2005, including section 9 and the factors listed in section 7(1)(c) and (d). These provisions were used to underline the importance of the child’s established relationships, the capacity of caregivers to provide for the child’s needs, and the likely effects on the child of changes in circumstances. On the facts, the court emphasised that the child was emotionally attached to the respondent and continued to regard him as a parent after separation, making the continuation of support obligations practically and constitutionally significant.

On evidentiary treatment of customary law, the court referred to Thibela v Minister Van Wet en Orde en Andere 1995 (3) SA 147 (T) and the Law of Evidence Amendment Act 45 of 1988, stating that a court may take judicial notice of indigenous law where it is readily ascertainable with sufficient certainty, and it held that Xhosa customary law adoption was sufficiently ascertainable to dispense with the need for expert evidence, with reference to Masenya v Seleka Tribal Authority and Another 1981 (1) SA 522 (T).

The court concluded that recognising and enforcing a duty to maintain a minor child adopted under customary law was not contrary to public policy, bonis mores, natural justice, or the spirit, purport, and objects of the Bill of Rights. It reasoned that both the applicant and respondent bore a legal duty to support the child under customary law, that the parties could not terminate the parent–child relationship without legal sanction, and that there was no reason why such a duty, viewed through section 39(2), should not be enforceable against the respondent under the common law or customary law. The court also accepted submissions that developing the common law/custmary law in this area would enhance the effectiveness of the maintenance system for many people living under customary-law regulated family arrangements.

5. Outcome and Relief

The High Court confirmed, in substance, that the respondent bore a legal duty to maintain the minor child adopted under Xhosa customary law, and upheld the approach that customary law (and its development where necessary) could ground enforceable maintenance obligations consistent with the Constitution.

The court granted relief directing administrative recognition and further determination of the maintenance amount. It ordered the Director-General of the Department of Home Affairs in terms of section 2 of the Births and Deaths Registration Act 51 of 1992 to register the minor child as the adopted child of the applicant and respondent. It further ordered the Magistrate of the Westonaria Maintenance Court to determine the amount of maintenance to be contributed by the respondent towards the child’s maintenance.

The judgment, as provided, did not include an express order as to costs.

Cases Cited

Kewana v Santam Insurance Co. Ltd 1993 (4) SA 771 (TkA).

Alexkor Ltd and Another v The Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC).

Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC).

Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC).

Metiso v Padongelukfonds 2001 (3) SA 1142 (T).

Raff v Cohen 1956 (4) SA 426 (K).

Smit v Smit 1980 (3) SA 1010 (O).

B v B and Another 1997 (4) SA 1018 (SO).

Bursey H v Bursey and Another 1999 (3) SA 33 (HHA).

Thibela v Minister Van Wet en Orde en Andere 1995 (3) SA 147 (T).

Masenya v Seleka Tribal Authority and Another 1981 (1) SA 522 (T).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Constitutional Act 108 of 1996), sections 28(2), 30, 39(1), 39(2), 173, 211(3).

Criminal Procedure Act 51 of 1977, section 304(4).

Maintenance Act 99 of 1998, sections 6(1)(A), 10, 15(3), 15(3)(a)(iii).

Child Care Act 74 of 1983, section 18(1)(a).

Children’s Act 38 of 2005, sections 7(1)(c), 7(1)(d), 9, 23, 25.

Births and Deaths Registration Act 51 of 1992, section 2.

Law of Evidence Amendment Act 45 of 1988, section 1(1).

Compulsory Motor Vehicle Insurance Act 25 of 1977 (Tk).

Children’s Act 33 of 1960.

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that a minor child adopted in accordance with Xhosa customary law, and raised within an established parent–child relationship, may found an enforceable duty of support against an adoptive parent for purposes of maintenance proceedings, notwithstanding the absence of adoption under the statutory procedures of the Child Care Act or Children’s Act. The court treated this conclusion as consistent with the constitutional recognition and application of customary law, the obligation to develop law in accordance with the Bill of Rights, and the paramountcy of the child’s best interests.

The court further held that administrative recognition should follow, directing the registration of the child as adopted by the parties, and it directed the maintenance court to determine the quantum of maintenance payable by the respondent.

LEGAL PRINCIPLES

Customary law must be applied by courts when it is applicable, subject to the Constitution and any legislation dealing with customary law, and it is to be treated as an integral part of South African law rather than as a subordinate system viewed through the common-law lens, as emphasised through reliance on constitutional jurisprudence.

When interpreting legislation, and when developing the common law or customary law, courts must promote the spirit, purport, and objects of the Bill of Rights in terms of section 39(2) of the Constitution, with specific weight given to section 28(2), which makes a child’s best interests paramount in all matters concerning the child.

A legally enforceable duty of support may be recognised in relation to children adopted under customary law where the customary adoption is established and ascertainable, the parent–child relationship has been accepted and acted upon, and enforcement of the duty is consonant with constitutional values and not contrary to public policy or bonis mores.

A court may take judicial notice of indigenous law in terms of the Law of Evidence Amendment Act 45 of 1988 where the indigenous law can be ascertained readily and with sufficient certainty; the judgment treated Xhosa customary adoption as meeting that threshold in the circumstances described.

Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010)